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Houston DWI Lawyers

    • Fickman, Robert: The three key defense issues in a DWI arrest are: * Whether the police had a reasonable suspicion to stop you? * Whether after stopping you the police had probably cause to arrest you? * Whether the state can prove beyond a reasonable doubt that you were driving while intoxicated.
    • Hill, Russo & Associates: In Texas the consequences of a DWI/DUI conviction are steep. For example, if you drive a company car you could lose your car insurance or if you are a government employee, you may lose both your job and your driver's license. Typically, those charged with drunk driving face lengthy jail or prison sentences, steep fines, license suspension, higher insurance rates, and potential deportation.
    • DOWNING LAW FIRM: If you have been arrested in Texas for a DWI, there are a few things you should know. In Texas, if you are arrested for drunk driving, you must request an administrative license revocation (ALR) hearing within 15 days to avoid an automatic suspension of your driver's license. If you failed an alcohol test or refused to take the test, you must take action within the 15-day period, or you waive your right to this hearing. If you have been arrested for driving while intoxicated (DWI), you are facing significant criminal and civil penalties that may include jail time, long periods of probation, mandatory education or treatment requirements, monetary fines, court-ordered interlock device installment in your car and other substantial limitations to your rights. If you are stopped by the police, you must show identification. Do not talk more than necessary. You are not required by law to take a field sobriety test. You are required to take a breath test if requested by a law enforcement officer. To learn more about your rights and options, you are encouraged to contact a DWI defense attorney familiar with Texas criminal laws.
    • Manuel Gozales: If the issue of a defendant's competency to stand trial is raised either before or during a trial, a trial court is required to order a separate hearing on the defendant's competence. The hearing is conducted outside the presence of a jury, unless either the prosecution or the defense requests a hearing before a jury. If either the prosecution or the defense requests a hearing before a jury, a jury, other than the jury that has been empanelled to determine the defendant's guilt or innocence, must be selected.
    • Gerald Fry: Hire An Attorney: Ę If you are the possible subject of a criminal investigation, the subject of a criminal investigation, or have been arrested or charged with a crime please hire an attorney before you do any of the following: Ę 1. DonŐt talk to the police; 2. DonŐt voluntarily go with the police to the police station (unless you are arrested); 3. DonŐt give the police permission to search your property; 4. DonŐt give the police a written statement.
    • Laticia Fuhr: Whether you have been charged or are being investigated for a crime, from the lowest level misdemeanor to the most serious felony, your case is important.
    • Rick DeToto: DWI is a criminal offense accusing a citizen of driving a motor vehicle while intoxicated. Legally, intoxication means that a person has lost the normal use of their mental or physical faculties or has a breath alcohol concentration of .08 or higher. But you must keep in mind that whether someone is intoxicated is based on the opinion of another person who probably has never met you before.ĘFurther, it is legal to drink and drive in Texas as long as you are not intoxicated. So, if you have had a couple drinks but are not intoxicated, it is possible for an officer to form an incorrect opinion and arrest you.
    • Easterling and Easterling:

      Elements That the State Must Prove

      ELEMENTS THAT THE STATE MUST PROVIDE BEFORE YOU CAN BE FOUND GUILTY OF DWI

      1. Your identification;

      2. That you were a driver;

      3. Of a “motor vehicle;”

      4. That you operated in a “public place;”

      5. In the State of Texas;

      6. In the county where you are  prosecuted;

      7. While “intoxicated;”

      A. By not having the “normal use of your mental or physical faculties” or;
      B. By having a blood or breath alcohol content of over 0.08 grams per liter of blood or per 210 liters of breath;
      C. At the time you were operating the motor vehicle;
      D. By the introduction of alcohol, a drug or combination of both into your body.

      YOUR VALUABLE RIGHT TO A JURY TRIAL

      The right to a trial by jury is a valuable Constitutional right which allows citizens to decide your case in open court. In a misdemeanor case, all six citizens must unanimously agree on your guilt beyond any reasonable doubt. In a felony case, you are entitled to twelve citizens to serve on the jury.

    • Logan Dietz: If you have been charged with a crime, you need an attorney. How do you know which criminal defense attorney to choose? How can you tell that they have the experience necessary to protect your rights? How do you know that they are keeping up with the constant changes to the law?
    • Christopher L. Carslon: The potential ramifacations for a DWI conviction are truly frightening. It is not just the legal penalties but also the social and possilbe work-related penalties that can be the most frightening. If convicted, you could loose your job or be unable to find future employment, your insurance rates will go up or be cancelled, and you could even go to jail. The fines, fees, costs, and surcharges are such that the State truly means it when they say. " DWI, you can't afford it."
    • Carroll & Becker:

      DWI and DUI Article

      You thought it would never happen, but you abruptly find yourself in an unwanted situation.

    • Essmyer & Tritico: Since 1992, the likelihood of an arrest leading to a conviction has generally risen. Although some defendants think that they can "beat the system" on their own, having an experienced criminal defense attorney on your side is the best way to prevent becoming another statistic. Whether you are facing a misdemeanor or a felony criminal charge, in State or Federal court, a conviction will result in a criminal record, and could result in large fines, jail or prison sentences, and the loss of important civil rights. No criminal charge should be taken lightly. Police and prosecutors will work hard to convict you.
    • Patrick Davis: The United States Constitution guarantees "...  the accused shall enjoy the right to a speedy and public trial, by an impartial jury ... and to have the assistance of counsel for his defense. " If you've been arrested, your future is at stake.  Isn't it worth your freedom to hire a lawyer with the knowledge and experience to fight your criminal charge?
    • Fred Dahr:
      Q: What is the punishment for a DWI conviction? A: The punishment range for a first DWI offense is from 3 to 180 days in jail and a fine not to exceed to $2000. Up to two years probation is an alternative. You must also pay a penalty fee to keep your drivers license. The penalty is $1000 a year for three years. If your blood alcohol level was .16 or greater, the penalty is $2000 a year for three years.

      Q: Will I lose my drivers license if I am arrested for DWI? A: You may lose your drivers license if you refuse to submit to a breath or blood test, or if you agree to take one of the tests and fail it. If you refuse to take a blood or breath test and you are older than 21, your license may be suspended from 180 days to 2 years. If you take the blood or breath test and fail, you license may be suspended from 90 days to one year. The suspension can be challenged in a hearing. However, you must quickly request the hearing (usually within 15 days of getting arrested).

      Q: What is an occupational license? A: If you lose your drivers license, you can petition for a restricted license that allows you to drive to essential destinations like school or work.

      Q: Can I get my DWI conviction expunged from my record? A: No, if you are convicted of DWI, you cannot get the conviction erased from your record. This is true even if you received probation instead of jail time. If you are worried about having a criminal record for employment or credit purposes, consult an attorney about fighting the charge.

      Q: Will my insurance rates go up if I am convicted of DWI? A: Yes. At the very least, they will probably double. Consult an insurance agent for details.

      Q: What is probation? A: Probation is an alternative punishment to prison. If convicted, you will not have to go to prison; instead, you will complete requirements imposed by the judge. For example, probation can include paying fines, random drug testing and community service. After you complete the probationary period, you will have a conviction on your record.

      Q: Am I eligible for probation? A: All persons convicted of misdemeanors are eligible for probation. For felonies, if you elect to have a jury sentence you, you are eligible for probation if your sentence is less than ten years and you have never been previously convicted of a felony. If you elect to have the judge sentence you, you are eligible for probation if your sentence is less than ten years and you are not convicted of certain crimes.

      Q: What is deferred adjudication? A: Deferred adjudication is a special type of probation available to defendants who plead guilty or no contest. Basically, you are placed on deferred adjudication for a certain amount of time. If you complete the time period without getting in trouble, the charges are dismissed and you will not have a conviction on your record. However, if you commit another crime or violate the conditions of the deferred adjudication, you are found guilty and the judge can assess any punishment in the statutory range of the crime. Deferred adjudication is not allowed for DWI and other intoxication offenses.

      Q: Is deferred adjudication better than probation? A: Basically, yes. If you complete the deferred adjudication period without getting in trouble, you will not have a conviction on your record. With probation, the conviction stays on your record. However, the consequences for getting in trouble while on deferred adjudication are worse than for probation. If you violate your deferred adjudication, the judge can assess any punishment in the statutory range of the crime.
    • Dragony Law Firm: If you have been arrested for DWI or for a juvenile DUI offense... ...we will discuss your situation and explain your legal options.
    • Richard Frankoff: Why ShouldnŐt I just Pay the Fine? Some people mistakenly believe pleading guilty and paying a fine is less expensive than hiring an attorney. Given the serious nature of DWI, it may not be that simple. Pleading guilty could affect your ability to apply for certain jobs or certain kinds of financial aid if you are in school. And, insurance companies make sure to maintain records of who has been charged with a DWI in order to cancel their coverage or increase their premiums. So, even if the court offers to reduce a fine, the increased cost of insurance premiums may more than offset what most people pay as a result.
    • Chad Henderson: If you have been charged with a crime, you need an experienced criminal defense lawyer defending your rights. Even if you have been charged with a serious felony, you still have legal rights that must be protected.
    • Rosa Elaides:

      Have you been charged with Driving While Intoxicated (DWI)?

      The very first thing you must do is make sure that either you, or I on your behalf, contact DPS within fourteen days of your arrest to assure your driving privileges are not suspended. Once we are assured you may keep your license while we fight your case, this is what you can expect to happen:

      COURT:
      The officer who pulled you over will provide his reports to the prosecutor's office. The prosecutor may add or delete charges originally brought once he or she obtains the blood alcohol results. You must enter a plea of NOT GUILTY. In no case should you plead guilty right away. It is essential to review all police reports, scientific results, and the procedures used at arriving at a particular blood alcohol level, before you enter a plea.

      The scientific procedures are not available at such an early stage of the proceedings. It takes time and effort to force the prosecution to provide you every shred of evidence needed to defend your case. You must obtain calibration results of the machines used. You must obtain the protocol used to test and evaluate your blood or breath sample. You must obtain evidence from the crime lab, which may establish the machine used was not properly functioning at the time your test was analyzed. You may need the services of an expert witness - called a forensic toxicologist - to help assess your defenses.

    • Matt Freeman: Many lawyers, even the prosecuting District Attorneys, are not aware when officers make investigation mistakes and how those mistakes are documented.
    • Terrence Gaiser: In 2004, the U.S. Supreme Court affirmed the inadmissibility of certain inculpating admissions under the Confrontation Clause in Crawford v. Washington. Specifically, the Court reversed the defendant's conviction for assault and attempted murder, holding that the admission into evidence by the trial court of a tape-recorded statement made by the defendant's wife during a police interrogation violated the defendant's Confrontation Clause rights. Because the wife's tape-recorded statement contained evidence that the wife had facilitated the crimes in issue, the trial court admitted the statement into evidence to convict the defendant under the hearsay exception for statements against penal interest, reasoning that it bore "particularized guarantees of trustworthiness" under the Roberts test. However, the U.S. Supreme Court reversed the defendant's conviction on the grounds that the Roberts analysis affords too much judicial discretion, by allowing a judge to determine the reliability of a statement based on which factors he chooses to consider and how much weight he chooses to give them. As such, the Court held that the admission into evidence of "testimonial" hearsay (e.g., statements made during a police interrogation by a non-testifying witness) violates a defendant's Confrontation Clause rights, if the defendant was not afforded the prior opportunity to cross-examine the witness.
    • Easterling & Easterling: Generally speaking, the penalties for DWI are as follows: First Offense (Class B Misdemeanor): A first-offense conviction includes a fine not to exceed $2,000.00 and/or the possibility of serving jail time from 3 days to 180 days, and a drivers license suspension of 90 to 365 days. Second Offense (Class A Misdemeanor): A conviction includes a fine not to exceed $4,000.00 and/or jail from 30 days to one year, and a drivers license suspension ranging from 180 days to 2 years. Third Offense (3rd Degree Felony): A conviction includes a fine not to exceed $10,000.00 and/or 2 to 10 years of imprisonment, and a drivers license suspension of 180 days to 2 years. DWI with an open alcohol container (first offense) (Class B Misdemeanor): In addition to the penalty referenced above, you face a minimum of 6 days in jail and a fine not to exceed $2,000.00. DWI with an accident where serious bodily injury occurred as a proximate cause of the intoxication (Intoxication Assault): (3rd Degree Felony). Upon conviction, you may serve a minimum of 2 years up to a maximum of 10 years in jail. Additionally, you may be fined not to exceed $10,000.00. DWI where a death has occurred as a proximate cause of the intoxication (Intoxication Manslaughter): (2nd Degree Felony). Upon conviction, a fine not to exceed $10,000.00 and/or imprisonment from 2 to 20 years. In the above cases, you may be eligible for probation, but eligibility does not guarantee that you will receive a probated jail sentence or fine. If you are convicted of Intoxication Assault and receive probation, a minimum of 30 days in jail must be served as a condition of probation. If you receive probation for Intoxication Manslaughter, you must serve a minimum of 120 days in jail. However, if you are convicted of Intoxication Assault or Intoxication Manslaughter and the court or jury finds that your automobile was a deadly weapon you may be ineligible to receive probation at all.
    • Calehr & Associates: In Texas, a DWI conviction can result in fines and jail time. In addition to the criminal sanctions for drunk driving, a person who registers over .08 on a breath alcohol test is subject to a 90 day license suspension, even on the first DWI arrest. A refusal to take a breath test subsequent to an arrest results in an automatic 180 license suspension. To challenge the suspension, you must request a hearing within 15 days. If you fail to request a hearing within 15 days, your license will automatically be suspended for 40 days.
    • Lindeman & Frye: "Driving While Intoxicated" or "Driving Under the Influence" is a serious offense which, depending on your past record and the facts of your arrest, could either be charged as a misdemeanor or a felony. State laws prohibiting drinking and driving have become increasingly complex in the last five years. In our state, the legal limit for blood or breath alcohol while operating a vehicle is .08. A first offender faces suspension of driver's license and monetary penalties of up to $2000.00 or more, and in some cases mandatory jail. A second DWI offense carries a punishment of up to one year in jail and a $4,000 fine. A third DWI offense is a third degree felony and it carries a punishment of up to 10 years in prison and a $10,000 fine. In all criminal cases, but especially in the area of DWI, you should know your rights. Remember these rights if you're ever stopped by a police officer for investigation of driving while intoxicated: You have a right to remain silent. You do not have to answer any questions which a police officer asks you during a traffic stop, except to identify yourself and produce proof of financial responsibility. You are not required to perform any field sobriety tasks -- you don't even have to look at the pen the officer will put in front of your face to test your vision reaction. If you believe that you may be driving while intoxicated, your polite refusal to perform these tasks will benefit you greatly in any criminal proceedings which will follow. You should politely refuse and look down or away when the officer attempts to perform the "pen test" on your eyes. In almost every case of being stopped for "investigation" of driving while intoxicated, if it is after dark and you have the odor of an alcoholic beverage on your breath, the officer is most likely going to arrest you regardless of whether or not you think you have passed the tests. You have a right to refuse a breath or blood test. When you are asked to perform a breath test after you are arrested and while you are at the police station, you are not required to submit to this test. There is currently no criminal sanction for this refusal. However, there is a potential drivers license suspension sanction for a refusal. You have a right to a hearing before your license is suspended. Whether you fail a breath test or you refuse a breath test, the Department of Public Safety will attempt to suspend your drivers license. However, they are not always successful. Under our system of laws, you have a right to a lawyer and a jury trial when you're charged with DWI. DWI cases are not "hopeless," and you should not assume that you will be found guilty. Only by consulting a lawyer and reviewing the evidence of the traffic stop and the arrest can you make an intelligent decision about how to resolve the charge against you.
    • Nicole DeBorde: As the accuracy of SFST results depends on an officer following standardized procedures during test administration, the NHTSA encourages states to implement refresher training requirements for practitioners. Despite the significance of compliance with standardized procedures in the administration of the SFST battery, courts have upheld WAT and OLS test results even when an officer has deviated from protocol. This is because physical agility exercises can be interpreted by police officers and by others in court. On the other hand, because of its scientific nature, the HGN test is less open to interpretation and courts are more likely to suppress the results of the HGN test when an officer has failed to strictly comply with protocol. Accordingly, courts often require prosecutors to lay the foundation for the admission of HGN evidence via expert testimony. Prosecutors often call on local optometrists to testify as experts in DUI trials. Optometrists in numerous DUI trials have based their expert testimony on a resolution adopted by the American Optometric Association, which endorses the HGN test as scientifically valid and reliable.
    • Larson Law Firm: The U.S. Supreme Court has generally interpreted the Fourth Amendment prohibition against "unreasonable searches and seizures" to impose a warrant requirement upon police officers who wish to perform a valid search or arrest. However, the Court has carved out some exceptions to the warrant requirement, which make certain "seizures" constitutionally permissible in the absence of a warrant. One exception that the Court has recognized is for investigative detentions based on less than probable cause. In 1968, the Court established a notable exception to the warrant requirement in Terry v. Ohio for investigative detentions based on less than probable cause (i.e., sufficient reason based on known facts to believe a crime has been committed).
    • John Floyd: If you are arrested, please remember that you have the right to remain silent and the right to an attorney. These rights can easily be lost if you are not careful and do not understand the criminal investigation process. Please understand that everything you say WILL be used against you. Investigators often indicate that suspects will receive better or special treatment if they will cooperate and speak freely. Everyone should understand that police officers/investigators have no legal authority to make agreements that bind the State. Therefore, they cannot make things better for you after charges are filed. An investigator may also suggest that an innocent person has nothing to hide and therefore does not need a lawyer. These are common investigative techniques used to press an individual for information and cooperation.
    • Lanese Fuller: The Fourth Amendment of the United States Constitution guarantees the right to be free from "unreasonable" government searches and seizures. As a general rule, law enforcement officers must obtain a validly issued warrant based on probable cause prior to conducting a search or seizing property. In instances where a warrant is not obtained, and no exceptions to the warrant requirement justify the search, the "exclusionary rule" takes effect and prohibits any evidence that was gathered from being introduced in trial. In the landmark U.S. Supreme Court case Mapp v. Ohio (1961), the Court ruled that evidence obtained in violation of the exclusionary rule is inadmissible in both federal and state courts.
    • Nathan Desai: When you consume alcoholic drinks, alcohol is absorbed into your blood stream. The level of alcohol in your blood, called the Blood Alcohol Content (BAC), can be measured by different tests. In most states including Texas, you are presumed to be intoxicated and unable to operate a vehicle safely if your BAC is .08 or greater. The units of blood alcohol concentration are defined in the statute , but refer to the number of grams of alcohol in 100 milliliters of blood, which is the standard medical unit for blood alcohol concentration. That is, a test result of .10 means .10 grams of alcohol per 100 milliliters of blood.
    • Mike Carnahan: There is not a bright-line rule establishing precisely what is and what isn't probable cause. However, what has become apparent is that a finding of probable cause requires objective facts indicating a likelihood of criminal activity. A police officers hunch, with nothing more, will not satisfy the requirements.
    • Robert Eutsler: To be convicted of DWI, you must be proven beyond a reasonable doubt to be intoxicated while operating a motor vehicle in a public place. It is no defense that you could legally use the substance causing the intoxication, nor does it matter whether you intended to drive while intoxicated.
    • Carroll & Becker: Driving while intoxicated
      County Criminal Court of Harris County
      PUNISHMENT RANGE: Maximum of 180 days in the Harris County jail
      D. A. 's OFFER: One year probation
      RESULT: NOT GUILTY
      Our client was riding his motorcycle on Highway 6 at approximately 10:00 p. m.. He was coming from a Mexican restaurant where, during dinner, he had consumed two beers. The arresting officer ( DPS ) testified that our client was following his patrol car closely and that he had his high beams on! The officer stopped our client and noted that our client had difficulty putting his kick stand down along with a strong odor of alcoholic beverage on his breath, slurred speech and red bloodshot eyes. ( For some reason, of the hundred or so DWI cases this firm has handled, our clients have always exhibited strikingly similar traits per the offense reports. ) Upon vigorous cross-examination, the arresting officer admitted that:
       
      1. The ingredients of an alcoholic beverage and not the alcohol itself are what gives the alcoholic

        2. beverage its odor;
      2. The strong odor of an alcoholic beverage in and of itself is extremely misleading. Specifically,

        3. were I to leave the courtroom and drink an alcoholic beverage the officer would not be able to
        tell how many alcoholic beverages I had imbibed nor would he be able to tell me what kind of
        beverage I had to drink - be it a non-alcoholic beer, a whiskey or a shot of tequila;
      3. Regarding the red and glazed bloodshot eyes, the officer admitted during a prolonged and

        4. withering cross-examination that he did not know what time our client got up, if the room he
        just left was smoky, if the wind from the motorcycle bothered our client's eyes or what the
        normal state of our client's eyes was;
      4. Regarding the slurred speech, the officer could not testify what my client's normal speech pattern

        5. was, whether my client was tired or if my client fumbled some of his words simply because he
        was nervous and put off by the officer's aggressive demeanor.


    • James Davis: Please seek legal counsel before saying something "that can and will be used against you in a court of law". Before blindly entering a plea or making statements to the d.a. or police, call.
    • Tyler Flood:

      The following are DWI Questions and Answers:

      1)  What must be proved to find you guilty of DWI?
      Answer:
        a.  Your identity,
        b.  You were operating,
        c.  A motor vehicle,
        d.  In a public place,
        e.  In Texas, while
        f.  Your Blood Alcohol Level was .08 or higher, by
        g.  The introduction of alcohol, a drug, or a combination thereof into the body

      2)  How do I avoid being arrested for DWI?
      Answer:  Do not give a breath sample.  The officer will most likely tell you that you will be arrested if you don't take the breathalyzer, and that your license will be suspended.  What they don't tell you is that if you blow over .08 (the legal limit) you will be arrested and your license will be suspended anyway. 

      3)  How do I keep my license from being automatically suspended?
      Answer:  In order to keep your license from being automatically suspended, we will request an Administrative License Revocation (ALR) hearing to contest DPS's contention that there was probable cause for your arrest. 

      4)  Does the ALR hearing effect my criminal court case for DWI?
      Answer:  In short, No.  DPS will try to suspend your license independent of anything that is happening with your case in court.  Additionally, upon a final conviction of DWI, the criminal court judge can suspend your license for anywhere from 6 months to one year depending on your age and the circumstances of your case, prior convictions, etc.

      5)  Will I have to go to jail if this is my first DWI?
      Answer:  If you have a clean criminal record and there were no serious injuries in your first misdemeanor DWI, you should not have to worry about doing any additional jail time.  In Harris County, probation is an option as an alternative to jail time.

      6)  How does a DWI effect my criminal record, will I have a conviction if I receive probation?
      Answer:  For DWI's in Texas, even if you receive probation, you will have a final conviction on your record.  The law states that on your second DWI, you must spend at least 30 days in jail if you are convicted.  This enhancement can sometimes be waived, however.

      7)  How much can I expect in fines if I receive probation? 
      Answer:  A DWI 1st carries a maximum fine of $2,000 which can be paid monthly as a part of probation.  Additionally, as of Sept. 1st 2003, DPS will assess an additional penalty of a minimum of $1,000 per year for three years upon a final conviction for DWI.

      8)  Is a breath sample always correct?
      Answer:  Absolutely not.  A breath sample from an Intoxilyzer machine can be inaccurate.  There are ways to attack the validity of the breath test results.

      9)  What if the Arresting officer did not read me my rights until after I completed sobriety tests at the station?
      Answer:  This is a common question.  Sobriety tests are generally considered non-testimonial in nature and Miranda does not apply to non-testimonial evidence.

      10)  What should I expect from a lawyer?
      Answer: 
        a.  Your lawyer should conduct a thorough investigation of the facts of your   case,
        b.  He should be able to prepare and conduct a rigorous cross examination of the State's witnesses.  In most cases, this is the most important part of the trial,
        c.  He should have a comprehensive understanding of constitutional rights, how they may be violated and how to protect those rights,
        d.  He should have experience in the type of case you are hiring him for.

      11)  What are the major areas of concern in a DWI case?
        a.  Whether the stop was constitutional,
        b.  Whether the administration of roadside tests was constitutional,
        c.  Whether there was Probable Cause for the arrest,
        d.  How Miranda will play a role in the case with statements and other evidence,
        e.  How the roadside tests were administered,
        f.   The administration of any Breath or Blood Samples given,
        g.  The constitutionality of the search and seizure.

      Real Life Stories of People Who Beat Their DWI Case

      JOE

      Joe got off work at 6:00 pm on Friday.  He and his work buddy split a 6-pack of Busch tallboys and went to play dominoes.  Joe drank three of the tallboys and then left to go visit his mother. 

      From 8:30 to 11:00 pm he talked with his mom and did not drink any alcohol.  Joe had stopped drinking when he got to his mom's house.  Joe fell sleep on his mother's couch and then got up at 3:45 am to go home to get ready for work that day. 

      Joe was pulled over at 4:00 am had the smell of alcohol on his breath and reportedly failed all the sobriety test he was given, including the HGN (Horizontal Gaze Nystagmus) , Walk & Turn and the One Legged Stand .

      Joe again performed those sobriety tests at the police station but this time on video.  He also refused the breath test.

      Joe looked solid as a rock on the video.  The officer administering those tests even lost his balance demonstrating the One Legged Stand.

      The state offered Joe an incredible plea bargain of no jail time, no probation, just paying a $100 fine. 

      Joe turned the offer down and went to trial where he was found to be NOT GUILTY.

      How To Avoid DWI - 5 Important Tips

      1)  Don't blow - you have the right to refuse taking a breath test.  Yes it's true, your license may be suspended longer than if you had blown, but you want to beat the case, right?  Instead, offer to give a blood sample.
      2)  Don't do any sobriety tests at all - at the scene where you are stopped or at the station when you are arrested.  You can refuse.
      3)  Don't lean against the car or anything else...every little thing you do that shows intoxication will be used against you in Court.
      4)  Don't say anything - they will use your statements against you in Court.  Common mistakes are saying, "Officer, I couldn't even do those tests if I were sober"..."I know I'm wasted."
      5)  Speak clearly and be polite .

      Field Sobriety Testing

      The Standardized Field Sobriety Test (SFST) battery is composed of three tests: Horizontal Gaze Nystagmus (HGN), Walk-and-Turn (WAT), and One-Leg Stand (OLS). The tests were developed by the National Highway Traffic Safety Administration (NHTSA) in the late 1970's. In 1981, law enforcement officers began using NHTSA's Standardized Field Sobriety Test (SFST) battery at roadside to help determine whether motorists who are suspected of DWI have blood alcohol concentrations (BACs) greater than 0.10 percent. Since 1981, however, many states including Texas have implemented laws that define DWI at BACs below 0.10.

      The validity of SFST results is dependent upon officers following the established, standardized procedures for test administration and scoring. According to NHTSA when properly administered and scored, under laboratory conditions, the accuracy of the SFSTs in correctly identifying intoxicated drivers is as follows:

      • HGN - 77%
      • WAT - 68%
      • OLS - 65%

      This means that even under laboratory conditions, the HGN was wrong 23% of the time, the WAT 32% and the OLS 35% of the time. Additionally, NHTSA's own research emphasizes that test results are valid only when administered in strict compliance with NHTSA protocol. If anyone of the standardized field sobriety elements is changed, the validity is compromised. It is therefore imperative to have your attorney review the manner in which the SFSTs was administered. Your lawyer may be able to suppress the results of an improperly administered test.

      HGN - Horizontal Gaze Nystagmus

      "Nystagmus" means an involuntary jerking of the eyes. HGN refers to an involuntary jerking occurring as the eyes gaze toward the side. In addition to being involuntary the person experiencing the nystagmus is unaware that the jerking is happening. The theory behind the test is that nystagmus becomes readily noticeable when a person is impaired.

      In administering the test the officer has the subject follow the motion of a stimulus with the eyes only. The stimulus may be the tip of a pen or penlight, an eraser on a pencil or a fingertip. As the eyes move from side to side each eye is examined for three specific clues:

      • Lack of Smooth Pursuit - does the eye move slowly or does it jerk noticeably?
      • Distinct Nystagmus at Maximum Deviation - when the eye moves as far to the side as possible and is kept at that position for several seconds, does it jerk distinctly?
      • Onset of Nystagmus Prior to 45% - as the eye moves to the side, does it start to jerk prior to a 45% angle?

      Officers frequently fail to properly administer the HGN. It is crucially important for your attorney to review the videotape, if available to ascertain whether the test was properly administered or whether suppression of the results is possible.

      Walk and Turn

      The WAT is a divided attention test consisting of two stages: Instruction Stage; and Walking Stage. In the instruction stage, the subject must stand with their feet in heel-to-toe position, keep their arms at their sides, and listen to instructions. The subject must maintain the heel-to-toe position and may not begin walking until all instructions are given. In the Walking Stage the subject takes nine heel-to-toe steps, turns in a prescribed manner, and takes nine heel-to-toe steps back, while counting out loud and watching their feet. Officers observe the subject's performance for eight clues:

      • can't balance during instructions
      • starts too soon
      • stops while walking
      • doesn't touch heel to toe
      • steps off line
      • uses arms for balance
      • loses balance on turn or turns incorrectly; and
      • takes the wrong number of steps

      A subject who exhibits two or more clues will fail the test. Scoring is entirely subjective and within the officer's discretion.

      One Legged Stand

      The OLS is also divided into two stages. In the Instruction Stage, the subject must stand with feet together, keep arms at side and listen to instructions. In the Balance and Counting Stage, the subject must raise the leg of his choice approximately 6 inches off the ground, toes pointed out, keeping legs straight. While looking at the elevated foot, count out load in the following manner: "one thousand and one", "one thousand and two", etc, until told to stop. The officer will instruct the subject to stop after 30 seconds. The subject is observed for the following clues:

      • sways while balancing
      • uses arms to balance
      • hops
      • puts foot down

      A subject who exhibits 2 or more clues, as determined by the officer, will fail the test.

      Romberg

      Person is instructed to stand with feet together, head tipped back, eyes closed, arms at side. Position is demonstrated. Observe anterior-posterior sway, 30 sec. trial.  This is not one of the "Standardized" Field Sobriety Tests.  Typically estimating 30 seconds within 5 seconds either way is considered good, anything outside of a 5 second margin of error will be counted as a sign of intoxication.  The officer will also look for swaying during this time.

      Breath Test - Chemical Test

      Under Texas law an individual is legally intoxicated if his/her alcohol concentration is .08 or greater. A person's alcohol concentration can be determined by testing the blood, urine or breath. "Alcohol concentration" means the number of grams of alcohol per:

      (a) 210 liters of breath;
      (b) 100 milliliters of blood; or
      (c) 67 milliliters of urine.

      Blood testing is generally considered to be the most reliable and accurate, while urine tests are regarded as the least precise. If you are arrested for DWI in Texas you will most likely be asked to give a sample of your breath. Breath testing is the most commonly utilized method because it is the least expensive to administer. The scientific community is sharply divided over the accuracy and reliability of breath testing procedures. The police do not save the sample of breath tested. Thus it is not available for re-testing by an independent laboratory.

      Time of Driving vs. Time of Test

      An essential element of the crime of DWI is that the person is intoxicated at the time of driving. However, chemical tests only reflect a person's alcohol concentration at the time of testing. A person's alcohol concentration at the time of driving may have been higher, lower or the same. In order to link the test result to alcohol concentration at the time of driving the prosecution may attempt to present expert testimony concerning alcohol concentration at the time of driving. The process the expert uses to relate the test result back to the time of driving is known as retrograde extrapolation. However, in order for the expert to offer an opinion which will be admissible at trial, the court must find that the expert's opinion will be reliable. Factors effecting reliability include:

      1. the length of time between the offense and the test(s) administered;
      2. the number of tests given and the length of time between each test; and
      3. whether, and if so, to what extent, any individual characteristics of the defendant were known to the expert. These characteristics and behaviors might include, but are not limited to,
        1. weight and gender
        2. typical drinking pattern
        3. tolerance for alcohol
        4. how much the person had to drink on the day or night in question,
        5. what the person drank,
        6. the duration of the drinking spree
        7. the time of the last drink, and
        8. how much and what the person had to eat either before, during, or after the drinking.

      Intoxilyzer 5000 - Breath Testing Device

      The State of Texas uses the Intoxilyzer 5000 to determine a person's breath-alcohol concentration. The Intoxilyzer's manufacturer claims the device works on the principle of Infrared Spectrometry. A sample of the subject's breath is collected in the device's sample chamber. At one end of the chamber is a light bulb. At the other end is a light detector. The machine measures the amount of light that passes through the chamber when no alcohol is present. This is this compared with the amount of light passing through the chamber after a sample of the subject's breath is introduced. In theory, the alcohol in a breath sample will absorb some of the light, thus the less light that passes through a breath sample the higher the concentration of alcohol. The Intoxilyzer has a computer chip which processes the results of the test to arrive at a specific alcohol concentration. The calculations the device performs are unknown as the manufacturer refuses to release the computer code.

      You may be interested to learn that the Intoxilyzer's manufacturer does not warrant that it is fit to accurately determine the alcohol concentration in human breath. In addition, there is no way to check the accuracy of results obtained by using this device because the State refuses to preserve breath specimens for future testing.

      Officer Decides Between Breath, Blood or Urine Test

      Under Texas law the officer has the right to determine which type of sample to request. For example, if the officer requests a breath sample and you will consent only to a blood test, your license is subject to suspension as a refusal. However, if you submit to a chemical test you have the right to have a physician, qualified technician, chemist, or registered professional nurse take an additional sample of your blood for analysis. Your request must be made within two hours of your arrest and the police are not required to transport you for testing.

      Penalties - ALR

      Driving While Intoxicated is a class B misdemeanor with a range of punishment of 3 to 180 days in jail and a fine not to exceed $2,000.00. However, Texas law increases punishment for persons with prior DWI convictions. An individual who pleads "guilty" or "no contest" to a DWI charge may not received deferred adjudication.

      First Offense

      In most circumstances a person convicted of DWI for the first time will not be required to spend time in jail but will, upon his timely application, receive community supervision (probation). The maximum term of probation is 2 years. As a condition of probation the person will be ordered to pay a fine, report to a probation officer, perform community service, abstain from the use of alcohol and attend an alcohol education course. In addition, a person's driver's license may be suspended for up to 1 year. However, if you receive community supervision and take the court ordered alcohol education course you will be able to keep your license.

      Note: If an open container of alcohol is present, the minimum period of confinement is increased from 3 to 6 days

      Second Offense

      A person convicted of a second DWI faces a minimum term of confinement of 30 days with a 180 day maximum along plus a fine not to exceed $4,000,00. A person convicted of a second offense is eligible for community supervision (probation), but will be required to serve a minimum of three days in jail as a condition of community supervision. Driver's license suspension is 180 days to 2 years.

      Third Offense

      A third DWI conviction becomes a felony if, during the previous ten years, the person has been convicted of DWI. A third DWI carries a term of confinement of 2 to 10 years in prison. If community service is granted a minimum of 10 days in jail will be required. The person's driver's license will be suspended for up to 2 years.

      DPS Surcharge on Driver's License

      In addition to criminal penalties, a person convicted of a first DWI will be required to pay a surcharge of $1,000.00 per year for three years as a condition to maintaining his license. The annual surcharge increases to $1,500 per year for a second or subsequent conviction within a 36 month period. If the person is shown to have had an alcohol concentration of .16 or greater, the surcharge is $2,000 per year for three years. Failure to pay the surcharge or enter into an installment payout agreement will result in suspension of the license until all payments are made.

      Administrative License Revocation

      WARNING!
      You have only 15 days from the date of arrest to request a hearing to save your driver's license. If you failed or refused to take a breath/blood test you driver's license is subject to automatic suspension.

    • Matt Horak: Simply knowing the criminal system is not enough. A skilled criminal defense attorney has to know how the system can work for their client.
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